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Synopsis

The Jammu & Kashmir and Ladakh High Court has held that though a court can base a conviction purely on the statement of a rape victim, it must first ascertain that the testimony meets the stringent criterion of "sterling quality." This standard demands that the victim's account be clear, consistent, and thoroughly convincing, devoid of ambiguities or contradictions, court said.

The observation stems from an appeal against an acquittal order dated February 15, 2021, by the Principal Sessions Judge, Budgam, resulting in the respondents being acquitted of charges under Sections 363 (kidnapping), 376 (rape), 342 (wrongful confinement), and 109 (abetment) of the Ranbir Penal Code (RPC).

The case initiated from a complaint by the father of the prosecutrix, a minor girl aged 13 years, filed on June 9, 2007, concerning her failure to return home. During the investigation, the prosecutrix was found in the custody of Shabir Ahmed Dar, respondent No.1, leading to her statement being recorded and a subsequent medical examination.

According to the minor's statement recorded under section 161, on the day of the incident, she was offered a lift by Shabir Ahmad Dar, whom she recognized, as she was returning home with vegetables. Instead of taking her home, Dar, along with Shabir Ahmad Kuchay, diverted the route towards Khan Sahib and forcibly restrained her in the vehicle. The victim reported that she was taken to a secluded place, a tin shed in a field, where she was held captive. During this time, Dar allegedly raped her twice. The following day, she was moved to an under-construction house, where Dar continued the assault. Her ordeal ended when she was spotted by the police near Peer Bagh, leading to her rescue as Dar fled the scene.

The chargesheet invoked Sections 363 (kidnapping), 376 (rape), 342 (wrongful confinement), and 109 (abetment) of the RPC. The accused denied the charges and opted for a trial, leading the prosecution to present evidence to support its case. The trial court, after evaluating the evidence and hearing arguments from both sides, concluded that the prosecution failed to establish the guilt of the accused beyond a reasonable doubt. As a result, the accused were acquitted.

The State appealed, arguing that the trial court failed to properly evaluate the evidence and that the victim's testimony alone should've sufficed for conviction. They also contested the trial court's skepticism due to the absence of physical injury marks, highlighting the prosecutrix's minor status and consequent irrelevance of consent.

Justice Sanjay Dhar, presiding over the case, highlighted the critical issue of determining whether the prosecutrix was a minor at the time of the incident. This determination was crucial because if the prosecutrix was found to had been underage, her consent (or lack thereof) to the sexual acts became irrelevant, thus framing the act as 'rape' under legal standards irrespective of her consent.

The prosecution claimed the prosecutrix was 13 years old at the time of the incident, citing a birth certificate and a school leaving certificate from Government Middle School, Bugroo Khansahib, indicating her birth date as March 15, 1992. However, these documents were not properly authenticated in court as no witness was brought to verify them, and the investigating officer admitted to taking the certificates at face value without further verification.

The absence of solid proof regarding the prosecutrix's age became a significant issue since the court couldn't rely on the unverified documents to establish her age. Moreover, the prosecutrix herself, when cross-examined, did not know her age, and her father was unable to provide clear information about her date of birth during his testimony. This lack of evidence and witness testimony on her age led to challenges in establishing the prosecutrix's minor status at the time of the alleged crimes.

The court emphasized that “in a criminal trial, the prosecution is bound to prove the charges against the accused beyond reasonable doubt and not by preponderance of probabilities… The burden of proving that the prosecutrix was minor at the time of alleged occurrence was upon the prosecution, which it has miserably failed to discharge".

The court further noted, “It is a settled law that conviction in a rape case can be based upon the solitary statement of a victim and it is not necessary for the Court to look for corroboration of her statement. However, it equally a settled position of law that before placing reliance upon the solitary statement of a victim of rape, the Court has to ascertain as to whether the testimony of the prosecutrix is of sterling quality".

The court placed reliance on the case of Rai Sandeep v. State (NCT of Delhi) [(2012) 8 SCC 21: (2012) 3 SCC (Cri) 750], which dealt with the question of “who can be said to be a sterling witness?” The court addressing the question observed that a "sterling witness" provides a testimony that is exceptionally reliable and credible, consistent from start to finish, and withstands rigorous cross-examination. The court considering the version of such a witness should be in a position to accept it for its face value without any hesitation. Their account should align with all other evidence presented, including physical, documentary, and scientific data, without giving rise to any doubts about the crime, the culprits, or the events' sequence. If a witness's testimony meets these stringent standards, it can be accepted without corroboration and used as the basis for conviction.

The court acknowledged that minor contradictions or discrepancies shouldn't automatically lead to rejection of the victim's testimony. However, the crucial legal requirement was that the court must find the prosecutrix's testimony to be of "sterling quality" before relying on it for conviction, it stressed.

The court further highlighted that inconsistencies undermine the credibility of the prosecutrix's testimony. It noted that she initially reported assaults at two locations, later changing her narrative to one, and also shifted her stance on Shabir Ahmad Kuchay's involvement. Additionally, her claims of injuries were contradicted by medical testimony, raising doubts about the reliability of her account.

Another significant contradiction in the case arose from the differing accounts of the prosecutrix and her father, Ghulam Mohammad Mir. The prosecutrix claimed that Shabir Ahmad Dar sexually assaulted her during the night inside the tin shed. However, her father contradicted this by stating that due to the presence of many women in the house where Dar had taken the prosecutrix, he believed no sexual act could have occurred. This discrepancy between the testimonies of the prosecutrix and her father introduced further doubt into the narrative presented by the prosecution.

In this case, significant contradictions exist within the prosecutrix's statements, between her statements and the Medical Officer's testimony, and concerning the involvement of the accused. Additionally, the father's account diverges from hers. Given these discrepancies, particularly on critical aspects, it's considered risky to convict based solely on the prosecutrix's testimony, leading to reasonable doubts about the occurrence and the accused's involvement. Therefore, the trial court's conclusion, based on these evidential inconsistencies, is deemed plausible, the high court opined. 

Given the inconsistencies and contradictions in the evidence presented, the appellate court found no substantial grounds to overturn the trial court's judgment of acquittal. As a result, the appeal was considered lacking in merit and was therefore dismissed.

Case Title : UT of J&K v Shabir Ahmad Dar & And